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Wednesday, April 15, 2015

Maryland has several pieces of
legislation which govern the possession and use of Marijuana for both medical
and non-medical purposes. The first piece of legislation is
Maryland’s 2003 Compassionate Use Act HB 702 (2003)/SB 502 (2003),
which was amended in 2011 by SB 308 (2011)/HB 291 (2011). The
Compassionate Use Act provided a “medical necessity defense” which could be
used to limit criminal sentences for marijuana possession. This act,
however, was limited, and Maryland courts noted that it “clearly contemplates a
conviction of use or possession of marijuana.” Jefferson
v. State, 883 A.2d 251, 254 (Md. Ct. Spec. App.
2004). In other words, “the General Assembly did not
put its imprimatur on the medical use of marijuana.” Id. (internal
quotation omitted). The 2011 amendment expanded these protections,
indicating that individuals who can provide “clear and convincing evidence”
that they need marijuana for medical reasons are “not guilty” of any
crime. See SB 308 (2011)/HB 291 (2011).

The second statute, enacted with the
passage of HB
1101 in 2013, is Md.
Code Ann. Health-General § 13-3301et seq., which established
the Natalie M. LaPrade Medical Marijuana Commission. The Commission
was established effective October 1, 2013 to regulate the distribution of
medical marijuana in Maryland and to study the medical efficacy of marijuana. However,
the statute, as originally enacted, limited distribution to teaching
hospitals. Due to the federal prohibition on marijuana, no teaching
hospital participated in the program. Accordingly, the legislation
was amended in 2014 by the passage of SB 923/HB
881 to permit an expanded list of entities to prescribe and distribute
marijuana. The amendments also authorize the Commission to issue
fifteen growing licenses.

Finally, and most significantly,
Maryland Governor Martin O’Malley signed SB 364 on
April 14, 2014 which removed criminal penalties for possession of small amounts
of marijuana. This act, which became
effective on October 1, 2014, replaced criminal penalties with civil
fines.

II.So Is Marijuana
Legal?

In Maryland, the law distinguishes
between “medical” marijuana and marijuana used for many other purposes. Like other prescription drugs, marijuana is
only legal if the an individual possesses a valid prescription. Possession of marijuana without a prescription
– for example, recreational marijuana – remains prohibited by Maryland
law. The bill signed by Governor
O’Malley did not “legalize” marijuana – it merely removed criminal penalties
for possession of small amounts of marijuana and replaced those penalties with
civil fines. Possession of larger
amounts of marijuana can still lead to criminal penalties, and, even for
possession of smaller amounts, repeat offenses can lead to increased fines and
mandatory drug treatment.

Perhaps more importantly, Marijuana
remains illegal under federal law. The
United States government has listed marijuana on “Schedule I” of the Controlled
Substances Act, 21 U.S.C. § 801 et seq. Drugs listed on Schedule I are those which
are considered to have “a high potential for abuse,” “no currently accepted
medical use,” and “lack accepted safety.”
Other Schedule I substances include Opioids and Opium derivatives, such
as Heroin, as well as other drugs with severe hallucinogenic, stimulant, or
depressant properties. Cannabimimetic
agents, such as marijuana, are a separate category of drugs and are listed
separately on Schedule I.

One consequence of the fact that
marijuana remains illegal on the federal level is that it falls within the
scope of the Drug Free Workplace Act, 41 U.S.C. § 81. The Drug Free Workplace Act applies to
employers who: 1) have contracts valued at $150,000.00 or more with the federal
government; or 2) receive any amount of grant money. Covered employers are required to publish
policies which prohibit the use of illegal drugs, discipline those who violate
its policy, and report drug-related crimes in the workplace. Sanctions for non-compliance include the
termination of federal contracts or grant moneys, giving employers a strong
incentive to avoid any appearance of tolerating drug use.

III.Potential Causes of
Action

a.Recreational Use

Although it has been decriminalized,
the Maryland legislature has chosen, at least for the time being, to leave in
place certain penalties for the possession of “small” amounts of marijuana for
non-medical use. The situation which now
obtains with regard to non-medical marijuana is thus analogous to that which
existed in 2004 with regard to medical marijuana – that is, the legislature has
substantially reduced the penalties associated with the drug, but has not give
its “imprimatur on the…use of marijuana.”
Jefferson, 883 A.2d at
254. As such, and especially given that
marijuana remains illegal on the federal level, it is unlikely that an employee
who uses recreational marijuana, and is subsequently disciplined or terminated
by her employer, will be able to bring a successful lawsuit challenging the
employer’s action.

b.Medical Marijuana

Unlike non-medical marijuana,
marijuana which is prescribed by a doctor for a qualifying medical condition
has been largely legalized, at least under Maryland state law. In Maryland, an employer may not discriminate
against any individual because of that individual’s disability, and may also
not fail or refuse to make a reasonable accommodation for the known disability
of an otherwise qualified employee. See Md. Code Ann. State Gov’t. §
20-606(a)(1), (4). Many medical
conditions treatable with marijuana, such as glaucoma and epilepsy, qualify as
“disabilities” under the Maryland statute.
The determinative issue in such cases is likely to be whether marijuana
use is a “reasonable” accommodation to an individual’s disability.

Maryland has not yet addressed this,
and many other, issues surrounding the implications of its medical marijuana
laws. That said, an employer faced with
the loss of federal grants or contracts for permitting the use of medical
marijuana could likely argue that the requested accommodation constituted an
“undue burden”. This is especially true
if other medications are capable of treating the individual’s condition.

In the absence of such contracts or
grants, and assuming that an employee was not “under the influence” (i.e.
impaired) at work, they will undoubtedly attempt to maintain a claim for
failure to accommodate a disability in the event that they were terminated or
disciplined for off-duty marijuana use. Md.
Code Ann. State Gov’t § 20-606(a)(4).

Maryland courts have not yet had the
opportunity to pass on whether such a claim is permissible. However, most courts to address the issue
have concluded that, absent a statutory command to the contrary, employers
remain free to set their own drug policies, and may discipline or terminate
employees who violate those policies. See, Coats v. Dish Network, 2013 COA 62 (Colo. Ct.
App. 2013), cert. granted
(Court held that medical marijuana is not a “lawful activity” under CO
statute because activity must be legal under both state and federal
law); Casias v. Wal-Mart, Inc.
695 F. 3d 248 (2012) (Court held that the Michigan Medical Marijuana Act does
not regulate private employment); Roe
v.Teletech Customer Care Management LLC, 171 Wash 2d 736(Wash. Sup.
Ct. 2011) (Court held that Washington’s Medical Use of Marijuana Act did
not regulate private employer’s conduct and employee who used medical
marijuana had no claim for wrongful discharge); Beinor v. Industrial Claim Appeals Office, 262 P.3d 970
(Colo. Ct. App. 2011), (Court found that Colorado’s medical marijuana
amendment provided an affirmative defense to criminal prosecution but did
not preclude denial from unemployment benefits after plaintiff was
terminated for violating employer’s zero tolerance drug policy); Emerald Steel Fabricators, Inc. v. Bureau of
Labor and Industries, 224 P.3d 518 (Ore. 2010) (Court found that
under Oregon's employment discrimination laws, employer was not required
to accommodate employee's use of medical marijuana); Ross v. RagingWire Telecommunications, Inc.,174 P.3d (Cal. 2008)(Court
held that state law cannot completely legalize marijuana for medical use
because it is illegal under federal law); but
see Arizona Revised Statutes 36-2801, 2813 (2104) (“An employer may
not discriminate against a person in hiring, termination or imposing any
term or condition of employment….for a registered qualifying patient's
positive drug test for marijuana components or metabolites, unless the
patient used, possessed or was impaired by marijuana on the premises of
the place of employment or during the hours of employment.”).

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Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

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